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Sanctions in International Law: the Contributions of International Organizations

Published online by Cambridge University Press:  21 May 2009

Ebere Osieke
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Extract

One of the major weaknesses of international law has been the absence of centrally organized machinery to enforce breaches of the law, as well as institutionalized sanctions against suchbreaches. This situation inspired misgivings “in the breasts of legal theorists”, and gave rise to the question whether international law was really law. Hobbes, and Pufendorf, gave a negative answer to the question; and during the nineteenth and twentieth centuries, Austin, s and his followers, who regard sanction as an indispensable element of a legal norm, adopted the same attitude.

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Articles
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Netherlands International Law Review , Volume 31 , Issue 2 , August 1984 , pp. 183 - 198
Copyright
Copyright © T.M.C. Asser Press 1984

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References

1. Hart, , The Concept of Law (OUP, 1961), p. 209Google Scholar.

2. For a discussion of this issue, see Oppenheim, , International Law (8th edn. by Lauterpacht, H.), pp. 7–8Google Scholar; Austin, , Lectures on Jurisprudence, Vol. I. p. 182 et seqGoogle Scholar; The Province of Jurisprudence, (1954), pp. 133 and 193; Kelsen, , Principles of International Law (1952), pp. 417–418Google Scholar; General Theory of Law and the State (1945), p. 328; Friedmann, , The Changing Structure of International Law (Columbia U.P., 1964), pp. 81–95Google Scholar; Akehurst, , A Modern Introduction to International Law (3rd edn., 1977), pp. 9–18Google Scholar; Merrills, , Anatomy of International Law (2nd edn., 1981), pp. 1–17Google Scholar; and pp. 32–43; and Schachter, , “Towards a Theory of International Obligation”, in Schwebel, , Ed. The Effectiveness of International Decisions (1971), pp. 9–32Google Scholar.

3. DeCive.XIV, 4.

4. De Jure Nature et Gentium, ii; c. iii; S. 22.

5. Austin, , Lectures on Jurisprudence, Vol. I, p. 182 et seqGoogle Scholar.

6. Morgenthau, , Politics Among Nations 4th edn., (1967), p. 283Google Scholar.

7. Brierly, , The Law of Nations 6th edn. by Waldock, , (OUP, 1963), p. 101Google Scholar.

8. See, for instance, Professor Hans Kelsen who appeared to conclude in his book Principles of International Law (1952), that international law is true law because, broadly speaking, it provides sanctions, such as the adoption of reprisals, war, and the use of force generally, and makes the employment of these sanctions lawful as a counter-measure against a legal wrong, but unlawful in other cases: Ibid., pp. 18–39. On the legality or otherwise of the sanction of use of force in international law in the light of the Charter of the United Nations, see Fitzmaurice, “The Foundations of the Authority of International Law and the Problem of Enforcement”, 19 MLR (1956), p. 1 et seq.

9. Friedmann, , “General Course in Public International Law”, Hague Recueil (1969), pp. 115–116Google Scholar; also The Changing Structure of International Law, pp. 90–91.

10. This is also the situation in the United Nations Organization, and the World Health Organization, (WHO); See respectively Articles 5 and 6 of the UN Charter; and Article 7 of the WHO Constitution.

11. The 48th Session of the International Labour Conference, June 1964, adopted amendments to the ILO Constitution authorizing itself to expel by two-thirds majority vote, and Member of the ILO which had been expelled by the United Nations, or to suspend from participation in the Conference any Member of the Organization which had been found guilty by the United Nations of pursuing a policy of racial discrimination, such as apartheid: See ILC, 48th Session; Record of Proceedings, p. 438. On the discussions and debates, see ibid., pp. 430–438;and pp. 799–802. The amendments are, however, not yet in force.

12. See Annual Report of the Council of ICAO, (1979), Doc. 9285, p. 128.

13. These are: Equatorial Guinea, Guinea Bissau, Liberia, Maldives, Mozambique, Nepal, Saint Lucia, Sao Tome and Principe, Seychelles, Surinam, United Arab Emirates, and Yemen. Ibid., pp. 129–130.

14. These were Gabon, Haiti, Oman, Paraguay, Qatar, Sierra-Leone, and Togo: Ibid., pp. 128–129.

15. Buergenthal, , Law-Making in the International Civil Aviation Organisation, (Syracuse University Press, 1969), p. 39Google Scholar.

16. A state which ceases to be a member of the ICAO as a result of these provisions may, after approval by the General Assembly of the United Nations, be re-admitted to the ICAO upon approval by a majority of the Council: Article 93 bis, (c).

17. UN Gen. Ass. Rec. 39(1) of 12 December 1946; GAOR, 1st Session, 2nd Pt., Resolutions, pp. 63–64.

18. ICAO Assembly, Proceedings of the First Session (1947), Doc. 7325 (C/852). (1952) p. 127, at p. 128Google Scholar.

19. See generally, Buergenthal, , Law-Making in the International Civil Aviation Organization, pp. 39–43Google Scholar.

20. A similar proposal was made concerning Portugal, but this was subsequently defeated at the plenary meeting of the Assembly by 40 votes for, 41 votes against, and 6 abstentions: Minutes of the 17th Session of the ICAO Assembly (1971), p. 144.

21. Resolutions adopted by the General Assembly during its 24th Session, 16 September – 17 December 1969: GAOR, 24th Session, Suppl. No. 30 (A/7630), p. 70.

22. Article 93 (bis) of the Chicago Convention provides that if the lights and privileges of a contracting State which is a Member of the United Nations are suspended by that organ, the rights and privileges of such contracting State will also be suspended in the ICAO, at the request of the United Nations. It should be noted, however, that the rights and privileges of South Africa were not suspended by the U.N. and, during the discussions in the Executive Committee, the President of Council stated that the Council had encountered difficulty with the words “discontinue collaboration with” and that, as it was unable to resolve the issue, it decided to include the item in the agenda of the Assembly to enable it to examine the question: Minutes of the ICAO Assembly, 17th Session (1971), p. 67.

23. The adoption of the resolution was also opposed by the delegates of the United Kingdom; Brazil; Colombia; Malawi; Spain; Mexico; Australia; France; Canada; New Zealand; and the United States of America: Minutes of the Executive Committee, 17th Session of the ICAO Assembly (1971), pp. 97–98Google Scholar.

24. The delegate of Portugal stated that the resolutions were also illegal because they were based on the illegal resolutions of the United Nations because the United Nations General Assembly resolution dealt with matters of domestic legislation: Minutes of Executive Committee, Ibid., pp. 73–74.

25. Article 62 authorizes the Assembly to suspend Members if they fail to fulfil their financial obligations to the ICAO, see below, pp. 15–19.

26. The proposal was supported by delegates from Senegal, the Peoples’ Republic of the Congo, Cameroon, Bulgaria, Poland, Jamaica, Indonesia, USSR, Yemen, Yugoslavia, India, Sierra-Leone, the United Arab Republic, Rwanda, the Democratic Republic of the Congo, Kenya, Uganda, Burundi, Iraq, Libya, Czechoslovakia, Liberia, Romania, Trinidad and Tobago, Venezuela and Niger: Minutes of the Executive Committee, 17th Session of the Assembly, (1971), pp. 70–102Google Scholar.

27. See generally, Ibid., pp. 72–102.

28. The resolution was adopted in the Executive Committee by 51 votes for, 30 against, and 13 abstentions: Minutes of the Executive Committee, (17th Session) op. cit., p. 104.

29. The resolution was adopted by the ICAO Assembly by 44 votes for, 39 votes against, 4 abstentions; and there was 1 spoilt ballot: ICAO Doc. 8958, p. 28. During the debate in the Assembly, the various arguments for and against the resolution were reiterated. In fact, before the vote on the resolution, the delegate of the United Kingdom made a very forceful speech in which he opposed it. He stated, inter alia, that his Government was strongly opposed to the resolution because the ICAO was not the proper forum for the discussion of political questions, and that the resolution, as framed, was unconstitutional. He said that he appreciated the attempt which had been made to overcome the unconstitutionally of the resolution by citing certain Articles of the Convention, but that did not succeed in making the resolution constitutional: Minutes of the 1 7th Session of the Assembly, (1971), p. 145.

30. See below, pp. 17–19.

31. Articles of Agreement, Art. XXVI, Section 2(a).

32. Ibid., Section 2(b).

33. On the weighted voting system, see Osieke, “Majority Voting Systems in the International Labour Organisation and the International Monetary Fund” (forthcoming in the ICLQ April 1984).

34. See IMF Directory of Members Quotas, (1980), pp. 1–8.

35. Summary Proceedings of the Ninth Annual Meeting of the Board of Governors (1954) p. 137.

36. Ibid., p. 136. See also IMF, 1945–1965, Vol. I, p. 363.

37. See Resolution No. 9–7, Summary Proceedings (1954), op. cit., p. 112 and p. 101.

38. On this question, see generally, Gold, “The Sanctions of the International Monetary Fund”, 66 AJIL (1972), pp. 745–751.

39. Article XXVI, Section 2(a) of the Articles of Agreement.

40. See Kroc, Rudolf, “The Financial Structure of the Fund”, IMF (1967), pp. 6–7Google Scholar.

41. Article V of the Articles of Agreement.

42. Article V, Section 7 of the Articles of Agreement.

43. For further details of this case, see, IMF 1945–1966, Vol. I, pp. 359–361. Also, Summary Proceedings, 9th Annual Meeting of the Board of Governors (1954) p. 137; and Gold, Sanctions of the Fund, op. cit., p. 755.

44. Articles of Agreement, Article XVIII, Section l(a).

45. Ibid., Article XVII, Section 2.

46. Ibid., Article XIX. According to the Articles of Agreement, the Fund may provide a participant, at its request, with special drawing rights for an equivalent amount of other Members; and the Fund may accept special drawing rights offered by a participant in exchange for an equivalent amount of the currencies of other members: Ibid., Article V, Section 6.

47. Article XXII, Section 2(a).

48. Article XXII, Section 2(b).

49. Article XXIII, Section 2(e).

50. Article XXIII, Section 2(0).

51. Jenks, “Some Constitutional Problems of International Organisations”, 22 BYIL (1945)pp.9–72, atp.60.

52. See, for instance, Article 13(4) of the ILO Constitution;and Article 62 of the Chicago Convention.

53. On the adoption of budgets by international organizations, see, generally, Bowett, , The Law of International Institutions, (1975), pp. 366–374Google Scholar; Schermers, , International Institutional Law, Vol. II, pp. 376–457Google Scholar; Singer, , Financing International Organisations, (The Hague 1961)Google Scholar; Mangone, and Srivastava, , “Budgeting for the U.N.”, 12 Int. Organisation, (1958), p. 473Google Scholar; Jenks, , “Some Legal Aspects of the Financing of International Institutions”, (1943), Trans, of Gros. Soc, pp. 87–132Google Scholar; and Meron, , “Budget Approval by the General Assembly of the United Nations: “Duty or Discretion”, 42 BYIL (1967), pp. 91–122Google Scholar.

54. Very few international organizations do not depend on contributions from their Members as the source of their income. These are mainly the International Bank group and regional development banks. The IMF receives income from service charges on its holdings of Members’ currencies and securities in excess of quotas, and from interest on borrowing by Members. In 1979–80, the income from these sources far exceeded the total administrative expenditure of the Organization: primarily from obligations, loans, investments and stand-by commitments. Normally, the income from these sources surpasses the administrative expenditure of the organisations. See, generally, Schermers, , International Institutional Law, Vol. II, pp. 427–428Google Scholar.

55. Schermers, , International Institutional Law, Vol. II, pp. 442–448Google Scholar: Singer, Financing International Organizations, pp. 54–55; and Bowett, , Law of International Institutions, p. 367Google Scholar.

56. ILC, 66th Session, (1980), Provisional Record, No. 22, p. 8Google Scholar.

57. Annual Report of the IMF, (1980), p. 174.

58. Schermers, , International Institutional Law, Vol. II, p. 395Google Scholar. Professor Schermers considers that “to some extent, the assessment based on capacity to pay conflicts with the principle of equality of States in international organisations. Inequality of contributions conflicts with full parity in voting rights”, Ibid., p. 396.

59. Bowett, , Law of International Institutions, p. 373Google Scholar.

60. Article 13(4).

61. Ibid.

62. See, ILC, 63rd Session 1957, Record of Proceedings, pp. 127, and 129, for the cases of the Republic of Bolivia, and Yemen Arab Republic respectively.

63. ILC, 66th Session, (Geneva, 1980), Provisional Record, No. 22, p. 11Google Scholar.

64. Ibid., Provisional Record, No. 26, p. 11.

65. The debate on the Kampuchean request took a political turn in the Finance Committee. The members that were opposed to the request maintained, inter alia, that Democratic Kampuchea's reasons for non-payment of its contributions were political, and not due to conditions beyond its control; and that the so-called delegation of Democratic Kampuchea did not represent the people of Kampuchea because only the representatives appointed by the People's Revolutionary Council of the People's Republic of Kampuchea were entitled to represent that country. Those in support of the request argued, however, that the question of the legitimacy of the representative of Democratic Kampuchea was a matter for the Credentials Committee, rather than the Finance Committee: Ibid., Provisional Record, No. 22, p. 11.

66. See also Article 88 which authorises the Assembly to suspend the voting power in the Assembly and in the Council of any contracting State that is found in default of the provisions concerning the settlement of disputes.

67. Schermers, , International Institutional Law, Vol. II, p. 584Google Scholar; Mankiewicz, Rene, “L'Organisation de l'aviation civile Internationale, 11 Annuaire Francois des Droits Int. (AFDI) (1965) pp. 639–641Google Scholar; and in 14 AFDI (1968), pp. 493–495; see also Buergenthal, , Law-Making in the ICAO, pp. 46–55Google Scholar.

68. See, generally, Stoessinger, John G., Financing the United Nations System, (Washington, 1964), p. 236Google Scholar; Schermers, , International Institutional Law, Vol. II, p. 585Google Scholar, and Buergenthal, , Law-Making in the ICAO, pp. 46–52Google Scholar.

69. Assembly Resolution A9–6, ICAO Doc. 7595 (A9-P/12), (1955); see also Buergenthal, , Law-Making in the ICAO, pp. 49–50Google Scholar.

70. Cf., Fitzgerald, Gerald F., “The International Civil Aviation Organization - A Case Study of a Functional International Organisation”, in Schwebel, (Ed.), The Effectiveness of International Decisions, (Leyden, 1971), p. 162Google Scholar.

71. Report of the Executive Committee, 22nd ICAO Assembly, (1977), ICAO Doc. 9210 A22-Ex., pp. 21–22.

72. See above, pp. 6–8.

73. Minutes of the Executive Committee, 21st Session of the ICAO Assembly, 1974, ICAO Doc. A21-Min. Ex./1–14., p. 130.

74. Ibid., pp. 129–130.

75. Cf., Leben, Charles, Les Sanctions Privatives de Droits ou de Qualité dans les Organisations Internationales Specialisées (Bruyland, Bruxelles, 1979), p. 182Google Scholar.

76. See Assembly Resolutions in Force (as of 15 October 1974), p. 163.

77. Assembly Resolutions in Force (as of 15 October 1974), Doc. 9124, (1975). pp. 163–164. For the discussions on this matter, seeMinutes of the Executive Committee,(21st Session of the Assembly, (1974), pp. 129–141. The draft resolution was adopted by the Executive Committee by 63 votes in favour of suspension of South Africa's voting powers, 21 opposed, and 12 abstentions: 24 delegates were absent, Ibid., p. 138.

78. Report of the Executive Committee, (22nd Session of the ICAO Assembly, (1977), (ICAO Doc. 9210, A22-Ex.), p. 21. The report of the Acting Chairman of the Executive Committee was approved in plenary without comments: Minutes of the Plenary Meetings, 22nd Session of the ICAO Assembly, (1977), Doc. 9216, A22-Min.P/l–13, p. 161.

79. Buergenthal, , Law-Making in the ICAO, p. 50Google Scholar.

80. Cf. Schachter, , “The Quasi-judicial Role of the Security Council and the General Assembly”, 58 AJIL (1964), pp. 960–961Google Scholar.

81. Gold, , The Sanctions of IMF, pp. 738–739Google Scholar.

82. See also Combacau, J., Le pouvoir de sanction de I'ONU: Etude théorique de la coercion non-militaire, (Pedone, Paris 1974), p. 21Google Scholar; and Leben, Charles, “Les Sanctions”, op.cit., p. 123Google Scholar.

83. See the I.C.J.'s Advisory Opinion of 21 June 1971 on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) ICJ Reports, 1971, p. 16, at pp.4647. See also Osieke, Constitutional Law and Practice in the International Labour Organisation (forthcoming).